# [2020] 2 S.C.R. 132

- **Citation:** [2020] 2 S.C.R. 132
- **Court:** Supreme Court of India
- **Decided:** 2020-01-21
- **Case number:** Civil Appeal No. 547 of 2020
- **Bench:** R. F. Nariman, Aniruddha Bose, V. Ramasubramanian
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2020-2-s-c-r-132-34337
- **Pages:** 29

## Headnote

Constitution of India - Tenth Schedule - Disqualification of
a candidate nominated in Legislative Assembly elections on ground
of defection - The election for the 11th Manipur Legislative Assembly
was conducted in March, 2017 - None of the political parties were
able to secure a majority i.e. 31 seats in a Legislative Assembly of
60 seats in order to form the Government - The Congress Party
emerged as the single largest party with 28 seats and BJP with 21
seats - The respondent no. 3 contested as a candidate nominated
and set up by the Congress party and was duly elected - On
12.03.2017, respondent no. 3 along with various BJP members met
the Governor of the State and staked a claim for forming a BJP-led
Government - Thereafter, the respondent no. 3 was sworn in as a
Minister in BJP-led government - Applications were filed before
the Speaker of the legislative Assembly between April and July, 2017
seeking disqualification of the respondent no. 3 under paragraph
2(1)(a) of the Tenth Schedule - No action was taken by the Speaker
- Held: It is clear from a reading of the judgment in Rajendra Singh
Rana and S.A. Sampath Kumar that a failure to exercise jurisdiction
vested in a Speaker cannot be covered by the shield contained in
paragraph 6 of the Tenth Schedule, and that when a Speaker refrains
from deciding a petition within a reasonable time, there was clearly
an error which attracted jurisdiction of the High court in exercise
of the power of judicial review - Further, Kihoto Hollohan do not
in any manner, interdict judicial review in aid of the Speaker arriving
 [2020] 2 S.C.R. 132
132
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at a prompt decision as to disqualification under the provisions of
the Tenth Schedule - The Speaker, in acting as a Tribunal under
the Tenth Schedule is bound to decide disqualification petitions
within a reasonable period - What is reasonable will depend on the
facts of each case, but absent exceptional circumstances for which
there is good reason, a period of three months from the date on
which the petition is filed is the outer limit within which the
disqualification petition filed before the Speaker must be decided if
the Constitutional objective of disqualifying persons who have
infracted the Tenth Schedule is to be adhered to - The only relief
that can be given in these instant appeals is that the Speaker of the
Legislative Assembly be directed to decide the disqualification
petitions pending before him within a period of four weeks from the
date on which this judgment is intimated to him.
Words and Phrases - "Quia timet" - Discussed.
Disposing of the appeals, the Court
Held: 1. It is clear from a reading of the judgment in
Rajendra Singh Rana and, in particular, the underlined portions
of paragraphs 40 and 41 that the very question referred by the
Two Judge Bench in S.A. Sampath Kumar has clearly been
answered stating that a failure to exercise jurisdiction vested in
a Speaker cannot be covered by the shield contained in paragraph
6 of the Tenth Schedule, and that when a Speaker refrains from
deciding a petition within a reasonable time, there was clearly an
error which attracted jurisdiction of the High Court in exercise
of the power of judicial review. [Para 22][154E-F]
Rajendra Singh Rana v. Swami Prasad Maurya (2007)
4 SCC 270 : 2007 (2) SCR 591; S.A. Sampath Kumar
v. Kale Yadaiah and Ors. SLP(C) No. 33677/2015 -
relied on
2. Indeed, the same result would ensue on a proper reading
of Kihoto Hollohan. Paragraphs 110 and 111 of the said judgment
KEISHAM MEGHACHANDRA SINGH v. THE HON'BLE SPEAKER
MANIPUR LEGISLATIVE ASSEMBLY
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when read together would make it clear that what the finality
clause in paragraph 6 of the Tenth Schedule protects is the
exclusive jurisdiction that vests in the Speaker to decide
disqualification petitions so that nothing should come in the way
of deciding such petitions. The exception that is made is also of
importance in that interlo

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SUPREME COURT REPORTS
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KEISHAM MEGHACHANDRA SINGH
v.
THE HON'BLE SPEAKER MANIPUR LEGISLATIVE
ASSEMBLY & ORS.
(Civil Appeal No. 547 of 2020)
JANUARY 21, 2020
[R. F. NARIMAN, ANIRUDDHA BOSE AND
V. RAMASUBRAMANIAN, JJ.]
Constitution of India - Tenth Schedule - Disqualification of
a candidate nominated in Legislative Assembly elections on ground
of defection - The election for the 11th Manipur Legislative Assembly
was conducted in March, 2017 - None of the political parties were
able to secure a majority i.e. 31 seats in a Legislative Assembly of
60 seats in order to form the Government - The Congress Party
emerged as the single largest party with 28 seats and BJP with 21
seats - The respondent no. 3 contested as a candidate nominated
and set up by the Congress party and was duly elected - On
12.03.2017, respondent no. 3 along with various BJP members met
the Governor of the State and staked a claim for forming a BJP-led
Government - Thereafter, the respondent no. 3 was sworn in as a
Minister in BJP-led government - Applications were filed before
the Speaker of the legislative Assembly between April and July, 2017
seeking disqualification of the respondent no. 3 under paragraph
2(1)(a) of the Tenth Schedule - No action was taken by the Speaker
- Held: It is clear from a reading of the judgment in Rajendra Singh
Rana and S.A. Sampath Kumar that a failure to exercise jurisdiction
vested in a Speaker cannot be covered by the shield contained in
paragraph 6 of the Tenth Schedule, and that when a Speaker refrains
from deciding a petition within a reasonable time, there was clearly
an error which attracted jurisdiction of the High court in exercise
of the power of judicial review - Further, Kihoto Hollohan do not
in any manner, interdict judicial review in aid of the Speaker arriving
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132
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at a prompt decision as to disqualification under the provisions of
the Tenth Schedule - The Speaker, in acting as a Tribunal under
the Tenth Schedule is bound to decide disqualification petitions
within a reasonable period - What is reasonable will depend on the
facts of each case, but absent exceptional circumstances for which
there is good reason, a period of three months from the date on
which the petition is filed is the outer limit within which the
disqualification petition filed before the Speaker must be decided if
the Constitutional objective of disqualifying persons who have
infracted the Tenth Schedule is to be adhered to - The only relief
that can be given in these instant appeals is that the Speaker of the
Legislative Assembly be directed to decide the disqualification
petitions pending before him within a period of four weeks from the
date on which this judgment is intimated to him.
Words and Phrases - "Quia timet" - Discussed.
Disposing of the appeals, the Court
Held: 1. It is clear from a reading of the judgment in
Rajendra Singh Rana and, in particular, the underlined portions
of paragraphs 40 and 41 that the very question referred by the
Two Judge Bench in S.A. Sampath Kumar has clearly been
answered stating that a failure to exercise jurisdiction vested in
a Speaker cannot be covered by the shield contained in paragraph
6 of the Tenth Schedule, and that when a Speaker refrains from
deciding a petition within a reasonable time, there was clearly an
error which attracted jurisdiction of the High Court in exercise
of the power of judicial review. [Para 22][154E-F]
Rajendra Singh Rana v. Swami Prasad Maurya (2007)
4 SCC 270 : 2007 (2) SCR 591; S.A. Sampath Kumar
v. Kale Yadaiah and Ors. SLP(C) No. 33677/2015 -
relied on
2. Indeed, the same result would ensue on a proper reading
of Kihoto Hollohan. Paragraphs 110 and 111 of the said judgment
KEISHAM MEGHACHANDRA SINGH v. THE HON'BLE SPEAKER
MANIPUR LEGISLATIVE ASSEMBLY
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when read together would make it clear that what the finality
clause in paragraph 6 of the Tenth Schedule protects is the
exclusive jurisdiction that vests in the Speaker to decide
disqualification petitions so that nothing should come in the way
of deciding such petitions. The exception that is made is also of
importance in that interlocutory interference with decisions of
the Speaker can only be qua interlocutory disqualifications or
suspensions, which may have grave, immediate, and irreversible
repercussions. Indeed, the Court made it clear that judicial
review is not available at a stage prior to the making of a decision
by the Speaker either by a way of quia timet action or by other
interlocutory orders. [Para 23][154G-H, 155A-B]
Kihoto Hollohan v. Zachillhu & Ors. (1992) Supp. (2)
SCC 651; [1992] 1 SCR 686 - relied on
Fletcher v. Bealey (1884) 28 Ch. D. 688; London
Borough of Islington v. Margaret Elliott [2012] EWCA
Civ. 56 (See paragraph 30) and Vastint Leeds BV v.
Persons Unknown [2018] EWHC 2456 (Ch.) -
referred to.
3. On perusal of the various decisions, it shows that what
was meant to be outside the pale of judicial review in paragraph
110 of Kihoto Hollohan are quia timet actions in the sense of
injunctions to prevent the Speaker from making a decision on
the ground of imminent apprehended danger which will be
irreparable in the sense that if the Speaker proceeds to decide
that the person be disqualified, he would incur the penalty of
forfeiting his membership of the House for a long period.
Paragraphs 110 and 111 of Kihoto Hollohan do not, therefore, in
any manner, interdict judicial review in aid of the Speaker arriving
at a prompt decision as to disqualification under the provisions
of the Tenth Schedule. Indeed, the Speaker, in acting as a Tribunal
under the Tenth Schedule is bound to decide disqualification
petitions within a reasonable period. What is reasonable will
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depend on the facts of each case, but absent exceptional
circumstances for which there is good reason, a period of three
months from the date on which the petition is filed is the outer
limit within which disqualification petitions filed before the
Speaker must be decided if the constitutional objective of
disqualifying persons who have infracted the Tenth Schedule is
to be adhered to. This period has been fixed keeping in mind the
fact that ordinarily the life of the Lok Sabha and the Legislative
Assembly of the States is 5 years and the fact that persons who
have incurred such disqualification do not deserve to be MPs/
MLAs even for a single day, as found in Rajendra Singh Rana, if
they have infracted the provisions of the Tenth Schedule. [Para
28][157A-F]
4. It is time that Parliament have a rethink on whether
disqualification petitions ought to be entrusted to a Speaker as a
quasi-judicial authority when such Speaker continues to belong
to a particular political party either de jure or de facto. Parliament
may seriously consider amending the Constitution to substitute
the Speaker of the Lok Sabha and Legislative Assemblies as
arbiter of disputes concerning disqualification which arise under
the Tenth Schedule with a permanent Tribunal headed by a retired
Supreme Court Judge or a retired Chief Justice of a High Court,
or some other outside independent mechanism to ensure that
such disputes are decided both swiftly and impartially, thus giving
real teeth to the provisions contained in the Tenth Schedule, which
are so vital in the proper functioning of our democracy. [Para
30][159A-C]
5. It is not possible to accede to appellant's submission
that this Court issue a writ of quo warranto quashing the
appointment of the Respondent No.3 as a minister of a cabinet
led by a BJP government. The respondent is right in stating that
a disqualification under the Tenth Schedule from being an MLA
and consequently minister must first be decided by the exclusive
authority in this behalf, namely, the Speaker of the Manipur
KEISHAM MEGHACHANDRA SINGH v. THE HON'BLE SPEAKER
MANIPUR LEGISLATIVE ASSEMBLY
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Legislative Assembly. It is also not possible to accede to the
argument of the appellant that the disqualification petition be
decided by this Court in these appeals given the inaction of the
Speaker. It cannot be said that the facts in the present case are
similar to the facts in Rajinder Singh Rana. In the present case,
the life of the legislative assembly comes to an end only in March,
2022 unlike in Rajinder Singh Rana where, but for this Court
deciding the disqualification petition in effect, no relief could have
been given to the petitioner in that case as the life of the legislative
assembly was about to come to an end. The only relief that can
be given in these appeals is that the Speaker of the Manipur
Legislative Assembly be directed to decide the disqualification
petitions pending before him within a period of four weeks from
the date on which this judgment is intimated to him. In case no
decision is forthcoming even after a period of four weeks, it will
be open to any party to the proceedings to apply to this Court for
further directions/reliefs in the matter. [Para 31][159C-H]
Case Law Reference
[2007] 2 SCR 591
relied on
Para 22
[1992] 1 SCR 686
relied on
Para 23
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 547 of
2020.
From the Judgment and Order dated 23.07.2019 of the High Court
of Manipur at Imphal in W.P. (C) No. 70 of 2018.
With
Civil Appeal Nos. 548, 549, 550 of 2020.
Ms. Madhavi Divan, ASG, Kapil Sibal, S. G. Hasnain, H. S.
Paonam, Sr. Advs., Yasir Rauf, Syed Mohd. Fazal, Vijay Kumar, Syed
Javed Hashmi, Ms. Vithika Garg, Ms. Vidushi Garg, M Z. Chaudhry,
Syed Imtiyaz Ali, Ali Safeer Farooqi, Arvind Kumar Kanva, Aftab Ali
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Khan, David A., Ms. Vaishali Verma, Ms. Rajkumari Banju, L. K.
Paonam, S. Gunabanta Meitei, Niraj Bobby Paonam, Ms. Tomthinnganbi
Koijam, S. K. Bhattacharya, Advs. for the appearing parties.
The Judgment of the Court was delivered by
R. F. NARIMAN, J.
1. Leave granted.
2. The Appeals in the present case raise important questions
relating to the Tenth Schedule to the Constitution of India (hereinafter
referred to as "Tenth Schedule"). The election for the 11th Manipur
Legislative Assembly was conducted in March, 2017. The said Assembly
election produced an inconclusive result as none of the political parties
were able to secure a majority i.e. 31 seats in a Legislative Assembly of
60 seats in order to form the Government. The Indian National Congress
(hereinafter referred to as "Congress Party") emerged as the single
largest party with 28 seats, the Bharatiya Janata Party (hereinafter
referred to as "BJP") coming second with 21 seats. The Respondent
No.3, in the Civil Appeal arising out of SLP(C) No. 18659 of 2019,
contested as a candidate nominated and set up by the Congress Party
and was duly elected as such. On 12.03.2017, immediately after the
declaration of the results, Respondent No.3 along with various BJP
members met the Governor of the State of Manipur in order to stake a
claim for forming a BJP-led Government. On 15.03.2017, the Governor
invited the group lead by the BJP to form the Government in the State.
On the same day, the Chief Minister-Designate sent a letter to the
Governor for administering oath as Ministers to eight elected MLAs
including Respondent No.3. On the same day, Respondent No.3 was
sworn in as a Minister in the BJP-led government and continues as such
till date.
3. As many as thirteen applications for the disqualification of
Respondent No.3 were filed before the Speaker of the Manipur
Legislative Assembly between April and July, 2017 stating that
Respondent No.3 was disqualified under paragraph 2(1)(a) of the Tenth
KEISHAM MEGHACHANDRA SINGH v. THE HON'BLE SPEAKER
MANIPUR LEGISLATIVE ASSEMBLY
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Schedule. The present petition that was filed by the Appellant, in the
Civil Appeal arising out of SLP(C) No. 18659 of 2019, was dated
31.07.2017.
4. Since no action was taken on any of these petitions by the
Speaker, one T.N. Haokip filed a writ petition being Writ Petition (C)
No.353 of 2017 before the High Court of Manipur at Imphal, in which
the Petitioner prayed that the High Court direct the Speaker to decide
his disqualification petition within a reasonable time. On 08.09.2017, the
High Court stated that as the issue of whether a High Court can direct a
Speaker to decide a disqualification petition within a certain timeframe
is pending before a Bench of 5 Hon'ble Judges of the Supreme Court
the High Court cannot pass any order in the matter, and the matter was
ordered to be listed so as to await the outcome of the cases pending
before the Supreme Court.
5. After waiting till January, 2018, on 29.01.2018, the Appellant, in
the Civil Appeal arising out of SLP(C) No. 18659 of 2019, filed Writ
Petition (C) No.17 of 2018 before the same High Court asking for the
following reliefs:
"i. Issue Rule Nisi;
 ii. To issue an appropriate Writ, Order or Direction as to this
Hon'ble Court may deem fit and proper;
iii. To declare that Respondent No. 3 has incurred disqualification
for being a member of the Manipur Legislative Assembly under para
2(1) (a) of the Xth Schedule to the Constitution of India in terms of law
laid down by the Constitution Bench of the Hon'ble Supreme Court in
Rajendra Singh Rana and Ors. -Vrs- Swami Prasad Maurya and Ors.
reported in (2007) 4 SCC 270.
iv. If the Hon'ble High Court is pleased to consider that the prayer
made in para no. (ii) and (iii) above deserve merit for a favourable order,
a writ in the nature of Quo Warranto be issued ousting Respondent No.
3 from the post/office of Minister."
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6. The writ petition was taken up and heard by the High Court
and disposed of by the impugned judgment dated 23.07.2019. The
questions that the High Court posed before itself, which required
consideration at its hands, were stated as follows:
"(a) Whether, in the facts and circumstances of the present case,
the respondent No. 1 can be said to have failed to discharge its
duties as enjoined in the Tenth Schedule to the Constitution of
India to decide the petitions?
(b) If the above issue (a) is answered in the affirmative, whether
the respondent No. 3 has prima facie incurred disqualification?
(c) If the respondent No. 3 is found to have incurred a prima
facie disqualification, whether this Court can issue an order
disqualifying the respondent No. 3 from being a member of the
Manipur Legislative Assembly or alternatively, whether this Court
has the power and jurisdiction to issue a writ of quo warranto
declaring the holding of the post of a Minister by the respondent
No. 3 as illegal, as it being without any authority of law?"
7. In answer to a preliminary objection taken by the Speaker that
judicial review is shut out in cases like the present, the High Court held
that the Speaker is a quasi-judicial authority who is required to take a
decision within a reasonable time, such reasonable time obviously being
a time which is much less than five years since the life of the House was
five years. The High Court held that the remedy provided in the Tenth
Schedule is in essence an alternative remedy to be exhausted before
approaching the High Court, and this being the case, if such alternative
remedy is found to be ineffective due to deliberate inaction or indecision
on the part of the Speaker, the Court cannot be denied jurisdiction to
issue an appropriate writ to the Speaker. Consequently, the preliminary
objection was dismissed and the Court went on to hear the writ petition
on merits. On the facts as stated above, following Ravi S. Naik v.
State of Maharashtra 1994 Supp. (2) SCC 641, the Court found that
the voluntary giving up of the membership of a political party may be
KEISHAM MEGHACHANDRA SINGH v. THE HON'BLE SPEAKER
MANIPUR LEGISLATIVE ASSEMBLY [R. F. NARIMAN, J. ]
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express or implied by conduct, and that the unequivocal conduct of the
Respondent No.3 becoming a Minister in a BJP-led Government after
fighting the election by being a member of the Congress Party would
make it clear that the disqualification contained in paragraph 2(1)(a) of
the Tenth Schedule is clearly attracted. The High Court then cited several
judgments on the writ of quo warranto but ultimately came to a finding
that since the very same issue was pending before a Constitution Bench
of the Supreme Court, it would not be appropriate for the High Court to
pass any order for the time being, which would include orders relating to
the inaction or indecision on the part of the Speaker, as well as the
issuing of a writ of quo warranto. The High Court thus ultimately
declined to grant any relief in the writ petition, as a result of which the
Appellant is before us.
8. Shri Kapil Sibal, learned Senior Advocate appearing on behalf
of the Appellant, in the Civil Appeal arising out of SLP(C) No. 18659 of
2017, has argued that the Speaker in the present case has deliberately
refused to decide the disqualification petitions before him. This is evident
from the fact that no decision is forthcoming till date on petitions that
were filed way back in April, 2017. Further, it is clear that notice in the
present disqualification petition was issued by the Speaker only on
12.09.2018, long after the petition had been filed, and as correctly stated
by the High Court, it cannot be expected that the Speaker will decide
these petitions at all till the life of the Assembly of 5 years expires. In
these circumstances, he has exhorted us to issue a writ of quo warranto
against Respondent No.3 stating that he has usurped a constitutional
office, and to declare that he cannot do so. For this purpose, he has cited
several judgments of this Court. He has also argued that though it is
correct to state that whether a writ petition can at all be filed against
inaction by a Speaker is pending before a Bench of 5 Judges of this
Court, yet, it is clear from a reading of paragraph 110 of Kihoto Hollohan
v. Zachillhu & Ors. (1992) Supp. (2) SCC 651, that all that was
interdicted by that judgment was the grant of interlocutory stays which
would prevent a Speaker from making a decision and not the other way
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around. For this purpose, he read to us Black's Law Dictionary on the
meaning of a quia timet action, and argued that the judgment read as a
whole would make it clear that if the constitutional objective of checking
defections is to be achieved, judicial review in aid of such goal can
obviously not be said to be interdicted. He also strongly relied upon the
observations of this Court in Rajendra Singh Rana v. Swami Prasad
Maurya (2007) 4 SCC 270 and exhorted us to uphold the reasoning
contained in the impugned judgment and then issue a writ of quo warranto
against Respondent No.3.
9. Mrs. Madhavi Divan, learned Addl. Solicitor General appearing
for the Hon'ble Speaker of the Manipur Legislative Assembly, has argued
that the reliefs prayed for in the writ petition filed by the Appellant, in the
Civil Appeal arising out of SLP(C) No. 18659 of 2017, are diametrically
opposed to the relief asked for in Writ Petition (C) No.353 of 2017, as a
result of which, there being mutually destructive pleas and prayers made
in the two writ petitions, no relief ought to be granted in the present
case. In any case, the prayers asked for in the present case are directly
interdicted by the judgment of a Constitution Bench of this Court in
Kihoto Hollohan (supra) inasmuch as a writ of quo warranto cannot
possibly be granted without first deciding whether Respondent No.3
stands disqualified, which is within the exclusive jurisdiction of the
Speaker. She argued that the High Court was wholly incorrect in holding
that the Speaker's decision under the Tenth Schedule would be in the
nature of an alternative remedy and held that this would be directly
contrary to several judgments of this Court, in particular, Nabam Rebia
and Bamang Felix v. Deputy Speaker, Arunachal Pradesh
Legislative Assembly (2016) 8 SCC 1, which states that the Speaker
has exclusive jurisdiction to decide disqualification questions that are
referred to him. In any case, she argued that a Three Judge Bench
cannot decide the present case and has to await the judgment of a Five
Judge Bench which has been made on a specific reference made by a
Two Judge Bench of this Court. She also distinguished the sheet anchor
of Shri Sibal's case i.e. the judgment in Rajendra Singh Rana (supra)
KEISHAM MEGHACHANDRA SINGH v. THE HON'BLE SPEAKER
MANIPUR LEGISLATIVE ASSEMBLY [R. F. NARIMAN, J. ]
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by stating that the facts there were completely different and that
ultimately judicial review took place only because there was a final
decision of the Speaker in that case. Further, because of the fact that
the life of the Assembly was about to end, this Court using its powers
under Article 142 of the Constitution of India in an extra-ordinary situation
decided the petition for disqualification itself. Both these features are
absent in the present case. Thus, according to her, while the ultimate
conclusion in the High Court judgment is correct, all the findings in favor
of the Appellant fly in the face of judgments of this Court.
10. Having heard learned counsel for both the parties, it is important
to first set out the reference order of this Court dated 08.11.2016 in S.A.
Sampath Kumar v. Kale Yadaiah and Ors. SLP(C) No. 33677/2015.
A Division Bench of this Court after referring to Speaker, Haryana
Vidhan Sabha v. Kuldeep Bishnoi & Ors. (2015) 12 SCC 381, and
Speaker, Orissa Legislative Assembly v. Utkal Keshari Parida
(2013) 11 SCC 794, then held:
"We have considered the aforesaid submissions of both the learned
Attorney General and the learned counsel appearing on behalf of
the petitioner. We feel that a substantial question as to the
interpretation of the Constitution arises on the facts of the present
case. It is true that this Court in Kihoto Hollohan's case laid down
that a quiatimet action would not be permissible and Shri Jayant
Bhushan, learned senior counsel appearing on behalf of some of
the respondents has pointed out to us that in P. Ramanatha Aiyar's
Advanced Law Lexicon a quiatimet action is the right to be
protected against anticipated future injury that cannot be prevented
by the present action. Nevertheless, we are of the view that it
needs to be authoritatively decided by a Bench of five learned
Judges of this Court, as to whether the High Court, exercising
power under Article 226 of the Constitution, can direct a Speaker
of a legislative assembly (acting in quasi judicial capacity under
the Tenth Schedule) to decide a disqualification petition within a
certain time, and whether such a direction would not fall foul of
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the quiatimet action doctrine mentioned in paragraph 110 of Kihoto
Hollohan's case. We cannot be mindful of the fact that just as a
decision of a Speaker can be corrected by judicial review by the
High Court exercising jurisdiction under Article 226, so prima facie
should indecision by a Speaker be correctable by judicial review
so as not to frustrate the laudable object and purpose of the Tenth
Schedule, which has been referred to in both the majority and
minority judgments in Kihoto Hollohan's case. The facts of the
present case demonstrate that disqualification petitions had been
referred to the Hon'ble Speaker of the Telangana State Legislative
Assembly on 23rd August, 2014, and despite the hopes and
aspirations expressed by the impugned judgment, the Speaker has
chosen not to render any decision on the said petitions till date.
We, therefore, place the papers before the Hon'ble Chief Justice
of India to constitute an appropriate Bench to decide this question
as early as possible."
11. We would have acceded to Mrs. Madhavi Divan's plea that in
view of this order of a Division Bench of this Court, the hearing of this
case ought to be deferred until the pronouncement by a Five Judge Bench
of this Court on the issues raised in the present petition. However, we
find that this very issue was addressed by a Five Judge Bench judgment
in Rajendra Singh Rana (supra) and has already been answered.
Unfortunately, the decision contained in the aforesaid judgment was not
brought to the notice of the Division Bench which referred the matter to
Five Hon'ble Judges of this Court, though Rajendra Singh Rana (supra)
was sought to be distinguished in Kuldeep Bishnoi (supra), which was
brought to the notice of the Division Bench of this Court.
12. Backtracking a little, it is important to first set out what was
decided in the majority decision in Kihoto Hollohan(supra). A Bench
of 3 learned Judges of this Court set out, in paragraph 24 of the judgment,
several questions that required decision in that case. We are directly
concerned with questions (E) and (F), which are so set out and which
read as follows:
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"24. On the contentions raised and urged at the hearing the
questions that fall for consideration are the following:
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(E) That the deeming provision in Paragraph 6(2) of the Tenth
Schedule attracts the immunity under Articles 122 and 212. The
Speaker and the Chairman in relation to the exercise of the powers
under the Tenth Schedule shall not be subjected to the jurisdiction
of any Court.
The Tenth Schedule seeks to and does create a new and nonjusticiable area of rights, obligations and remedies to be resolved
in the exclusive manner envisaged by the Constitution and is not
amenable to, but constitutionally immune from, curial adjudicative
processes.
(F) That even if Paragraph 7 erecting a bar on the jurisdiction of
Courts is held inoperative, the Courts' jurisdiction is, in any event,
barred as Paragraph 6(1) which imparts a constitutional 'finality'
to the decision of the Speaker or the Chairman, as the case may
be, and that such concept of 'finality' bars examination of the
matter by the Courts."
13. The majority judgment noticed that before the Constitution
(Fifty Second Amendment) Act, 1985 inserting the Tenth Schedule into
the Constitution of India, two abortive attempts were made in view of
the recommendations of the Committee on Defections to enact an antidefection law. The first was the Constitution (Thirty Second Amendment)
Bill, 1973, which lapsed on account of dissolution of the House; and the
second was the Constitution (Forty Eighth Amendment) Bill, 1979 which
also so lapsed. The Court in paragraphs 9 and 13 referred to the object
of the Constitution (Fifty Second Amendment) Act, 1985 as follows:
"9. This brings to the fore the object underlying the provisions in
the Tenth Schedule. The object is to curb the evil of political
defections motivated by lure of office or other similar considerations
which endanger the foundations of our democracy. The remedy
proposed is to disqualify the Member of either House of Parliament
or of the State Legislature who is found to have defected from
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continuing as a Member of the House. The grounds of
disqualification are specified in Paragraph 2 of the Tenth Schedule.
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13. These provisions in the Tenth Schedule give recognition to
the role of political parties in the political process. A political party
goes before the electorate with a particular programme and it
sets up candidates at the election on the basis of such programme.
A person who gets elected as a candidate set up by a political
party is so elected on the basis of the programme of that political
party. The provisions of Paragraph 2(1)(a) proceed on the premise
that political propriety and morality demand that if such a person,
after the election, changes his affiliation and leaves the political
party which had set him up as a candidate at the election, then he
should give up his membership of the legislature and go back before
the electorate. The same yardstick is applied to a person who is
elected as an Independent candidate and wishes to join a political
party after the election."
14. The Court dealt with contentions (E) and (F) together as
follows:
"95. In the present case, the power to decide disputed
disqualification under Paragraph 6(1) is pre-eminently of a judicial
complexion.
96. The fiction in Paragraph 6(2), indeed, places it in the first
clause of Article 122 or 212, as the case may be. The words
"proceedings in Parliament" or "proceedings in the legislature of
a State" in Paragraph 6(2) have their corresponding expression in
Articles 122(1) and 212(1) respectively. This attracts an immunity
from mere irregularities of procedures.
97. That apart, even after 1986 when the Tenth Schedule was
introduced, the Constitution did not evince any intention to invoke
Article 122 or 212 in the conduct of resolution of disputes as to
the disqualification of members under Articles 191(1) and 102(1).
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The very deeming provision implies that the proceedings of
disqualification are, in fact, not before the House; but only before
the Speaker as a specially designated authority. The decision under
Paragraph 6(1) is not the decision of the House, nor is it subject to
the approval by the House. The decision operates independently
of the House. A deeming provision cannot by its creation transcend
its own power. There is, therefore, no immunity under Articles
122 and 212 from judicial scrutiny of the decision of the Speaker
or Chairman exercising power under Paragraph 6(1) of the Tenth
Schedule.
xxx xxx xxx
100. By these well known and accepted tests of what constitute
a Tribunal, the Speaker or the Chairman, acting under Paragraph
6(1) of the Tenth Schedule is a Tribunal.
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109. In the light of the decisions referred to above and the nature
of function that is exercised by the Speaker/Chairman under
Paragraph 6, the scope of judicial review under Articles 136, and
226 and 227 of the Constitution in respect of an order passed by
the Speaker/Chairman under Paragraph 6 would be confined to
jurisdictional errors only viz., infirmities based on violation of
constitutional mandate, mala fides, non-compliance with rules of
natural justice and perversity.
110. In view of the limited scope of judicial review that is available
on account of the finality clause in Paragraph 6 and also having
regard to the constitutional intendment and the status of the
repository of the adjudicatory power i.e. Speaker/Chairman, judicial
review cannot be available at a stage prior to the making of a
decision by the Speaker/Chairman and a quia timet action would
not be permissible. Nor would interference be permissible at an
interlocutory stage of the proceedings. Exception will, however,
have to be made in respect of cases where disqualification or
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suspension is imposed during the pendency of the proceedings
and such disqualification or suspension is likely to have grave,
immediate and irreversible repercussions and consequence.
111. In the result, we hold on contentions (E) and (F):
That the Tenth Schedule does not, in providing for an additional
grant (sic ground) for disqualification and for adjudication of
disputed disqualifications, seek to create a non-justiciable
constitutional area. The power to resolve such disputes vested in
the Speaker or Chairman is a judicial power.
That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks
to impart finality to the decision of the speakers/Chairmen is valid.
But the concept of statutory finality embodied in Paragraph 6(1)
does not detract from or abrogate judicial review under Articles
136, 226 and 227 of the Constitution insofar as infirmities based
on violations of constitutional mandates, mala fides, non-compliance
with Rules of Natural Justice and perversity, are concerned.
That the deeming provision in Paragraph 6(2) of the Tenth
Schedule attracts an immunity analogous to that in Articles 122(1)
and 212(1) of the Constitution as understood and explained in
Keshav Singh case [(1965) 1 SCR 413 : AIR 1965 SC 745] to
protect the validity of proceedings from mere irregularities of
procedure. The deeming provision, having regard to the words
'be deemed to be proceedings in Parliament' or 'proceedings in
the legislature of a State' confines the scope of the fiction
accordingly.
The Speakers/Chairmen while exercising powers and discharging
functions under the Tenth Schedule act as Tribunal adjudicating
rights and obligations under the Tenth Schedule and their decisions
in that capacity are amenable to judicial review.
However, having regard to the Constitutional Schedule in the Tenth
Schedule, judicial review should not cover any stage prior to the
making of a decision by the Speakers/Chairmen. Having regard
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to the constitutional intendment and the status of the repository of
the adjudicatory power, no quia timet actions are permissible, the
only exception for any interlocutory interference being cases of
interlocutory disqualifications or suspensions which may have
grave, immediate and irreversible repercussions and
consequence."
15. In Rajendra Singh Rana (supra), this Court dealt with an
order made by the Speaker of the Uttar Pradesh Legislative Assembly
dated 06.09.2003. On the facts in that case, the 14th Legislative Assembly
Election for the State of U.P. was held in February, 2002 and since none
of the political parties secured the requisite majority, a coalition
government was formed headed by Ms. Mayawati, leader of the Bahujan
Samaj Party (hereinafter referred to as "BSP"). On 25.08.2003, the
Cabinet took a unanimous decision for recommending dissolution of the
Assembly, after which, on 27.08.2003, 13 members of the Legislative
Assembly elected to the Assembly on tickets of the BSP met the Governor
and requested him to invite the leader of the Samajwadi Party, namely,
Shri Mulayam Singh Yadav, to form the Government. On 29.08.2003,
the Governor invited the leader of the Samajwadi Party to form the
Government and gave him a time of two weeks to prove his majority in
the Assembly. On 04.09.2003, Mr. S.P. Maurya, leader of the BSP filed
a petition before the Speaker under the Tenth Schedule praying that the
13 BSP MLAs who had proclaimed support to Shri Mulayam Singh
Yadav before the Governor on 27.08.2003 had incurred the disqualification
mentioned in paragraph 2(1)(a) of the Tenth Schedule. Meanwhile, a
group of 37 MLAs, said to be on behalf of 40 MLAs elected on BSP
tickets, requested the Speaker to recognize the split in the BSP on the
basis that one-third of the members of BSP consisting of 109 legislators
had separated from the BSP. On 06.09.2003, therefore, the Speaker did
three things - first, he accepted that 37 out of 109 comprises one-third
of the members of the BSP, which amounted to a split, this group being
known as the Loktantrik Bahujan Dal. This Dal had merged with the
Samajwadi Party which merger was then accepted by the very same
order dated 06.09.2003. Third, the Speaker did not decide the application
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seeking disqualification of the 13 MLAs who were part of the 37 MLAs
who appeared before the Speaker, and adjourned the disqualification
petition. Meanwhile, since a writ petition was filed in the High Court of
Judicature at Allahabad before the Lucknow Bench against this order,
the Speaker passed another order on 14.11.2003, stating that the order
adjourning the petition for disqualification would continue until after the
High Court decided the writ petition. However, on 07.09.2005, even
before the writ petition was disposed of by a Full Bench of the High
Court, the Speaker passed an order rejecting the petition filed for
disqualifying of 13 MLAs of the BSP.
16. On these facts, the Court noted in paragraph 17 of the judgment
that the order dated 06.09.2003 is the subject matter of challenge in the
writ petition filed before the High Court. In paragraph 30 of the judgment,
this Court made it clear that the order of the Speaker dated 07.09.2005
would have no independent legs to stand on, stating as follows:
"30. ...This last order is clearly inconsistent with the Speaker's
earlier order dated 14-11-2003 and still leaves open the question
whether the petition seeking disqualification should not have been
decided first or at least simultaneously with the application claiming
recognition of a split. If the order recognising the split goes,
obviously this last order also cannot survive. It has perforce to
go." [Emphasis Supplied]
17. After referring to this Court's decision in Kihoto Hollohan
(supra) and Ravi S. Naik (supra) in para 22 of the judgment, the Court
held:
"22....Suffice it to say that the decision of the Speaker rendered
on 6-9-2003 was not immune from challenge before the High
Court under Articles 226 and 227 of the Constitution of India."
18. The Court then went on to hold:
"25. ...On the scheme of Articles 102 and 191 and the Tenth
Schedule, the determination of the question of split or merger
cannot be divorced from the motion before the Speaker seeking a
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disqualification of a member or members concerned. It is therefore
not possible to accede to the argument that under the Tenth
Schedule to the Constitution, the Speaker has an independent power
to decide that there has been a split or merger of a political party
as contemplated by paras 3 and 4 of the Tenth Schedule to the
Constitution. The power to recognise a separate group in
Parliament or Assembly may rest with the Speaker on the basis
of the Rules of Business of the House. But that is different from
saying that the power is available to him under the Tenth Schedule
to the Constitution independent of a claim being determined by
him that a member or a number of members had incurred
disqualification by defection. To that extent, the decision of the
Speaker in the case on hand cannot be considered to be an order
in terms of the Tenth Schedule to the Constitution. The Speaker
has failed to decide the question, he was called upon to decide, by
postponing a decision thereon. There is therefore some merit in
the contention of the learned counsel for BSP that the order of
the Speaker may not enjoy the full immunity in terms of para 6(1)
of the Tenth Schedule to the Constitution and that even if it did,
the power of judicial review recognised by the Court in Kihoto
Hollohan [1992 Supp (2) SCC 651 : AIR 1993 SC 412 : (1992) 1
SCR 686] is sufficient to warrant interference with the order in
question."
 [Emphasis Supplied]
19. The Court also hastened to add:
"29. In the case on hand, the Speaker had a petition moved before
him for disqualification of 13 members of BSP. When that
application was pending before him, certain members of BSP had
made a claim before him that there has been a split in BSP. The
Speaker, in the scheme of the Tenth Schedule and the rules framed
in that behalf, had to decide the application for disqualification
made and while deciding the same, had to decide whether in view
of para 3 of the Tenth Schedule, the claim of disqualification had
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to be rejected.